PETERS v TVNZ and Anor HC AK

• Jurisdiction: New Zealand
• Judge: Andrews J
• Judgment Date: 08 June 2010
• Neutral Citation: [2010] NZHC 1166
• Docket Number: CIV 2004-404-003311
• Court: High Court
• Date: 08 June 2010

BETWEEN

Winston Raymond Peters

Plaintiff

and

Television New Zealand Limited

First Defendant

and

Yvonne Teresa Dossetter

Third Defendant

[2010] NZHC 1166

CIV 2004-404-003311

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Application for strike out — Peters alleged that certain statements broadcast by TVNZ were defamatory — allegations that Peters was not an impartial member of a Parliamentary Select Committee that investigated the scampi fishing industry, in that he had a close relationship with Simunovich Fisheries Ltd — comments broadcasted referenced statements made in Parliament by a member — whether the comments were capable of bearing a defamatory meaning — whether material covered by Parliamentary privilege could be referred to when considering whether a publication was capable of bearing an alleged defamatory meaning.

Appearances:

B Henry and M Church for Plaintiff

W Akel and T Walker for First Defendant

B Henry, PO Box 4070, Shortland Street, Auckland

(RESERVED) JUDGMENT (No. 2) OF Andrews J

[Application by First Defendant to strike out cause of action]

Introduction

1 In his fifth amended statement of claim the plaintiff, Mr Peters, pleads three causes of action in defamation against the third defendant, Television New Zealand Limited (“TVNZ”). The second cause of action is founded on the content of a broadcast on the Holmes programme on 23 June 2004 (“the Holmes programme”).

2 TVNZ has applied for determination as a preliminary question whether the words published by TVNZ in the Holmes programme and referred to in para 9 of the fifth amended statement of claim are reasonably capable of bearing the meanings pleaded by Mr Peters, and for an order striking out Mr Peters? second cause of action on the grounds that the words are not reasonably capable of bearing the meanings pleaded. Mr Peters opposes TVNZ's application.

Background

3 In 2004 Mr Peters was a Member of Parliament, and had been an alternate member of a parliamentary Select Committee inquiring into the scampi fishing industry in New Zealand and, in particular, the involvement of Simunovich Fisheries Limited (“Simunovich”) in that industry. The inquiry had begun in February 2003.

4 On 22 June 2004 TVNZ's One News contained an item reporting on the disclosure in Parliament of an affidavit sworn by the third defendant, Ms Dossetter, in relation to matters affecting the scampi inquiry. Ms Dossetter had sworn the affidavit on 29 January 2004. One News reported that a Member of Parliament had referred the affidavit to the chair of the Select Committee (Mr Carter), who had in turn referred it to the Speaker, calling for an investigation. Mr Peters? first cause of action in the fifth amended statement of claim is founded on the One News item.

5 The Holmes programme on 23 June 2004 reported on allegations contained in Ms Dossetter's affidavit. The programme was structured as follows:

A full transcript of the Holmes programme is annexed to this judgment.

• a) An introduction by the presenter, Mr Holmes. Mr Holmes first said that “serious allegations” had been made in Parliament that day “under the protection of Parliamentary privilege”. Mr Holmes then set out what a Member of Parliament, Mr Shirley, had said in Parliament in relation to Ms Dossetter's affidavit. Mr Shirley is reported as having said that Ms Dossetter had said in her affidavit that a proposal had been made at a meeting attended by Mr Peters and Mr Meurant (a former Member of Parliament) that a payment of $300,000 to Mr Meurant would be a good investment for the Simunovich business. Ms Dossetter had also said that Mr Meurant was working for both Mr Peters? political party and for Simunovich during the scampi inquiry. Mr Holmes then said that Ms Dossetter was the former partner of Mr Meurant;

• b) Background information by a reporter, Ms Janes, in relation to the scampi industry and the Select Committee inquiry, including extracts from an interview of Ms Dossetter by Ms Janes, an outline given by Ms Janes of alleged telephone calls from Mr Meurant to Mr Peters and to Simunovich representatives at the time of the Select Committee inquiry, and footage of Mr Shirley referring to Ms Dossetter's affidavit in Parliament together with a report by Ms Janes of two further statements made by Mr Shirley in Parliament;

• c) A report by Mr Holmes of a statement made by the Managing Director of Simunovich denying any illegal or inappropriate behaviour, proceeded by Mr Holmes noting that Mr Meurant had not answered calls and that Mr Peters was overseas; and

• d) A live studio interview of Mr Shirley by Mr Holmes.

6 Mr Peters issued proceedings on 29 June 2004, initially claiming against five defendants. His fifth amended statement of claim was filed on 30 June 2009. It is appropriate to record that the following interlocutory judgments in the proceeding are relevant to this application:

• a) In a judgment given on 5 November 2004, 1 Paterson J struck out the causes of action against Mr Carter, on the grounds that the statements made by Mr Carter were not reasonably capable of bearing the defamatory meanings alleged by Mr Peters (that he was guilty of serious misconduct or contempt of Parliament). Mr Peters was given leave to replead.

• b) In a judgment given on 30 August 2006, 2 Associate Judge Christiansen struck out causes of action alleged against Mr Carter and TVNZ in Mr Peters? third amended statement of claim:

  • i) Mr Carter had applied for an order striking out Mr Peters? amended pleading which was that Mr Carter's statements contained allegations that Mr Peters was suspected of being a party to serious misconduct. The Associate Judge struck out the amended pleading against Mr Carter, on the grounds that Mr Carter's statements were not reasonably capable of bearing the alleged meaning. Leave was not given to replead.

  • ii) TVNZ had applied to strike out Mr Peters? second cause of action, relating to the Holmes programme, also on the grounds that the programme was not reasonably capable of bearing the alleged defamatory meaning. The Associate Judge held that the programme was not capable of meaning that TVNZ had itself adopted the allegations made as true

    and was itself alleging that Mr Peters was involved in serious misconduct, that his conduct was potentially criminal, or that he was in contempt of Parliament. Accordingly, the claim against TVNZ was struck out.

• c) In a judgment given on 20 December 2007, 3 Woodhouse J dismissed an application for review of the judgment of Associate Judge Christiansen. With respect to Mr Peters? second cause of action against TVNZ, Woodhouse J found that Associate Judge Christiansen was correct in his conclusion that the Holmes programme was not capable of meaning that TVNZ itself was asserting that Mr Peters was guilty of misconduct. However, at [49], he gave leave for Mr Peters to file an amended statement of claim which included pleadings that:

  • (a) By the Holmes broadcast on 23 June 2004, TVNZ itself asserted that there was cause for suspicion that Mr Peters may have been guilty of serious misconduct.

  • (b) TVNZ broadcast allegations by Mrs Dossetter which:

    • (i) affirmed the report by TVNZ in the same programme of what was recorded in her affidavit; and

    • (ii) if such be the case, affirmed express allegations in her affidavit, with a pleading in this regard to articulate the matters referred to in [29] of this judgment.

The fifth amended statement of claim — the second cause of action

7 The second cause of action begins at para 8 of the fifth amended statement of claim in which the official record of Parliament of Mr Shirley's disclosure of Ms Dossetter's affidavit is set out. Paragraph 9 sets out the transcript of the Holmes programme, excluding the live studio interview of Mr Shirley. That is, the pleaded transcript ends at the end of the report of a statement by Mr Peter Simunovich, on the third page of the transcript. The transcript of the interview of Mr Shirley is underlined in the annexed transcript of the Holmes programme.

8 At para 10 Mr Peters pleads that he “expressly does not rely on any words spoken in Parliament”, in particular the words set out at para 8, or reports of statements made by Mr Shirley in Parliament included in the Holmes programme, “except for the purpose of understanding the meaning of the words spoken outside Parliament” set out in para 9. The reports of statements made by Mr Shirley in Parliament are highlighted in the annexed transcript of the Holmes programme.

9 Paragraphs 11 and 12 set out the alleged meanings of the words spoken during the Holmes programme. At para 12 it is alleged that the words in para 9 would be understood as Ms Dossetter stating that Mr Peters had accepted and acted on a bribe and was corrupt.

10 At paragraph 13 it is pleaded:

That the first defendant by:

• (i) Repeating and publishing the statements in paras 8, 9 and 10 by the said Dossetter; or in the alternative:

• (ii) Publishing a mosaic of its own comments at the same time as repeating the said statements of Dossetter defamed the plaintiff.

11 It is apparent that Mr Peters has chosen not to include a pleading that TVNZ itself asserted that there was cause for suspicion that Mr Peters had been guilty of misconduct (pursuant to leave given at [49](a) of Woodhouse J's judgment). The second cause of action against TVNZ in the fifth amended statement of claim follows the second basis on which leave was given to replead, in [49](b) of the judgment of Woodhouse J.

Principles as to strike out

12 Counsel were agreed as to the principles to be applied when considering an application to strike out pleadings. First, I must assume that the facts as pleaded in the statement of claim are correct. Secondly, a pleading...